The Trump administration will soon publish final rules that would likely expedite how certain firearms and military-style weapons are sold internationally. Congress can and should seek to block these changes, which exacerbate the export of U.S. gun violence problems abroad.

On Monday, mildly revised versions of rules first released for comment in May were presented to Congress, starting a 30-day review period.

Specifically, the proposed rules relate to the first three categories of the United States Munitions List (USML) maintained under the International Traffic in Arms Regulations (ITAR), whose lead administrator is the Department of State. Under the new rules, nonautomatic and semi-automatic firearms and their ammunition currently controlled under the USML would move to the Commerce Control List (CCL) to become part of the Export Administration Regulations (EAR), whose lead administrator is the Commerce Department.

Under the new rules, Congress would lose its ability to provide oversight on many firearms sales. In 2002, Congress amended notifications requirements so it would be informed of potential commercial sales of firearms under USML category I when they were valued at just $1 million, but no such notifications exist for items on the CCL. In recent years, Congressional involvement has helped forestall firearms transfers to repressive forces in Turkey and the Philippines.

At the core of these proposed changes is the mistaken belief that firearms do not merit tighter control because they are neither high-tech nor provide unique military advantages. In reality, they are some of the weapons most often used to commit abuses and extend conflict around the world. These weapons, used in the mass shootings at Sandy Hook, the Pulse nightclub, Las Vegas, and Parkland, are not the commodities that the United States should make easier to export. Exported and trafficked into Mexico and Central America, for example, U.S.-origin small arms are already falling into the hands of human rights abusers and criminal organizations.

In 2017, the administration notified Congress of more than $660 million of proposed firearms sales regulated under the USML, according to the Security Assistance Monitor. The value of transfers that would be subject to the new rule is not yet clear as that data cannot be fully disaggregated.

A bill introduced Friday by Representative Norma Torres (D-Calif.) and co-sponsored by House Foreign Affairs Chair Elliot Engel (D-N.Y.) and others would simply prohibit the changes.

If not halted or significantly changed, the new rules would continue the cynical approach of the Trump administration to treat weapons as any other trade commodity, threatening to undermine long-term global security and upsetting decades of more responsible U.S. arms transfer policy.

An unusual mix of issues from the bombing of a school bus full of children in Yemen to alarm about possible 3D printing of untraceable guns is fueling controversy over the Trump administration’s promotion of conventional arms sales and military support. Yet, the administration seems poised to resist opposition to its practices coming from Congress and elsewhere.

Even before the Aug. 9 bombing in Yemen using U.S.-supplied weapons killed more than 50 people, including more than 40 children, congressional leaders were seeking answers to their questions about the propriety of U.S. military support for the coalition led by Saudi Arabia and the United Arab Emirates that has frequently hit civilians and civilian infrastructure in its fight against the Houthi forces.

Following a string of congressional battles on arms sales and assistance (See ACT, April 2018.), Congress included a provision in the fiscal year 2019 National Defense Authorization Act that requires the secretary of state to certify within 30 days that Saudi Arabia and the UAE are complying with U.S. laws on weapons use and “taking appropriate steps to avoid disproportionate harm to civilians and civilian infrastructure.”

But President Donald Trump indicated his belief that he may not be bound by the requirement. In his Aug. 13 signing statement on the authorization legislation, Trump explicitly listed the provision as one among many that “encompass only actions for which such advance certification or notification is feasible and consistent with the President’s exclusive constitutional authorities.”

A separate action related to international arms regulation garnered widespread domestic opposition and drew a temporary restraining order from a U.S. district court judge in Washington state. In 2015 the State Department ordered an organization called Defense Distributed to remove online instructions for the 3D printing of firearms because such digital files created an export that is controlled under the International Traffic in Arms Regulations (ITAR).

Despite winning court challenges to its authority, the State Department settled the case on June 29, and it published a notification on July 27 that Defense Distributed would be exempt from licensing requirements.

During July, opposition to the settlement included a legal challenge to block the administration’s actions filed by 19 states and the District of Columbia. Judge Robert S. Lasnik of the U.S. District Court for the Western District of Washington granted a temporary restraining order July 31 that led Defense Distributed to take down its online publications and the State Department to remove the exemption. The Justice Department filed a brief Aug. 15 calling on the judge to lift the injunction, but on Aug. 27 he extended the order as a preliminary injunction.

A separate administration effort might result in the same deregulation of 3D firearm printing, but the results are not expected until next year. The public comment period closed July 9 on proposed changes to how semiautomatic and nonautomatic firearms and their ammunition are regulated. (See ACT, June 2018.) The transfer of such weapons from the State Department-controlled U.S. Munitions List to the Commerce Department-led Commerce Control List drew more than 6,000 comments, many of them negative.

Leading gun control and human rights organizations weighed in against the proposal, including Amnesty International USA, which wrote that the changes increase “the risk that irresponsible brokers of small arms and light weapons could evade regulation, and arms will be diverted to states or non-state actors with poor human rights records.”

The final rule is not expected until 2019, but the Commerce Department would not be expected to block online publication of 3D printing instructions under the circumstances of the Defense Distributed case. The Commerce Department would be expected to protect a commercial copyright, but Defense Distributed is actively working to publish material online rather than seeking such protection.

In addition to the provisions in the defense authorization law, members of Congress are taking other steps to circumscribe the administration’s actions involving sales of weapons for use in the Yemen war. Sen. Bob Menendez (D-N.J.), the ranking member of the Senate Foreign Relations Committee, said on June 28 he could not support the sale of precision-guided munition kits to Saudi Arabia and the UAE, of which Congress officially has not been notified.

Menendez said he is “not confident” that the weapons sales will help drive the parties toward a political settlement. “Even worse, I am concerned that our policies are enabling perpetuation of a conflict that has resulted in the world’s worst humanitarian crisis,” he wrote in a letter to Secretary of State Mike Pompeo and Defense Secretary Jim Mattis.

Sen. Edward Markey (D-Mass.), a member of the Senate Foreign Relations Committee, announced on Aug. 1 that he would place a hold on the nomination of R. Clarke Cooper to be assistant secretary of state for political-military affairs unless the administration changes its policy on 3D gun printing. Cooper would be in charge of the department’s Directorate for Defense Trade Controls (DDTC), the office that published the short-lived exemption for Defense Distributed.

Tina Kaidanow, the acting assistant secretary of state for political-military affairs, broadly defended the administration’s approach at a public event Aug. 8. In describing the implementation plan for the Trump administration’s conventional arms transfer policy, she focused on the economic benefits of a more aggressive governmental push to sell arms.

Although Kaidanow mentioned that human rights and nonproliferation objectives remain a part of U.S. conventional arms transfer policy, the plan’s three main elements are directed at increasing arms exports. Those elements include proactively ensuring that “U.S. products can win in the competitive global market place,” organizing governmental action to support that, and producing “conducive environments…to foster the efficient operations of U.S. defense trade.”

“What this initiative makes clear,” she said, “is that, under this administration, there will be no more active advocate for U.S. sales than the U.S. government itself.”

The 143 states participating in the third review conference on the 2001 UN Program of Action to Prevent, Combat and Eradicate Illicit Trade in Small Arms and Light Weapons adopted on June 30 a plan for implementing the international accord and its weapons tracking framework, known as the International Tracing Instrument.

The meeting’s outcome document set precedent by explicitly addressing ammunition, which a small minority of members, including the United States, had blocked in the past. Although the program of action and its outcome document are not legally binding, it is possible that the reference to ammunition may contribute to normalizing its inclusion in other multilateral work on small arms and light weapons control.—TRUSHAA CASTELINO

Sections:

An administration proposal on firearms export rules could effectively undercut the important oversight role that Congress provides.

Body:

Volume 9, Issue 8, October 5, 2017

In the coming weeks, it is likely that the Trump administration will formally propose new U.S. firearms export rules designed to increase foreign sales but that also make it easier for terrorists and international criminals to obtain lethal weapons. The proposal could also effectively undercut the important oversight role that Congress provides.

With the Trump administration showing far less restraint regarding the transfer of sophisticated U.S. weaponry, it is essential that the Congress carefully review the new firearms export policy approach and use what levers it has to ward off changes to longstanding policies that have served U.S. national security interests in the past.

Background

Early in his administration, President Obama launched the Export Control Reform Initiative, based on a review that found the United States was “trying to control too much.” Indicating that it sought to “strengthen the United States’ ability to counter threats such as the proliferation of weapons of mass destruction,” the administration proposed and/or enacted changes to 18 of the 21 categories of major weapons and technology controlled under the United States Munitions List (USML), moving many items to the Commerce Control List (CCL).

A thrust of the effort was described as “building higher fences around fewer items” and those fewer items were ones that tended to be high-tech and give the U.S. a unique military advantage. Left undone were the first three categories: firearms, close assault weapons and combat shotguns (category I), guns and armaments (II); and their ammunition/ordnance (III).

The Trump administration is now moving to address arms transfers in these three remaining categories. The Defense Trade Advisory Group, a committee of private sector defense exporters and defense trade specialists that advises the State Department, discussed possible revisions Sept. 8. It is expected that proposed changes will be made public later this month, with an expedited 60-day public review period.

Faulty Logic Leads to Dangerous Risks

At the core of export reform push is the mistaken belief that small arms and light weapons do not merit the tighter controls of the USML because they are neither high-tech nor provide unique military advantages. In reality, however, many of the weapons in categories I-III are the ones most frequently used in violent conflict, in perpetuating human rights abuses, and that can most easily fall into hands of those who seek to undermine U.S. national security.

Recognizing this, in 2002 Congress amended its notification threshold so that it would be informed of potential commercial sales of firearms under USML category I when they were valued at just $1 million, as opposed to $14 million for other major weapons sales. During that notification period, as well as during informal prenotifications, Congress can seek to block or delay sales. During a Sept. 26 Senate Foreign Relations Committee hearing, ranking member Benjamin Cardin (D-Md.) pointed to forestalling small arms sales to Turkey and the Philippines as recent examples of Congress’ needed role.

No similar statutory requirement of congressional notification exists for most arms sales under the CCL. According to the Security Assistance Monitor, $556 million in firearms notifications have already gone to Congress through July this year

In a cautionary Sept. 15 joint letter to Secretary of State Rex Tillerson, Senators Cardin, Dianne Feinstein (D-Calif.), and Patrick Leahy (D-Vt.) wrote that: “Moving such firearms from the USML to the CCL would be directly contrary to congressional intent … effectively eliminating congressional oversight of exports of these weapons.”

However, due to the less restrictive nature of the rules surrounding the CCL, the dangers go beyond a lack of Congressional oversight. A number of license exemptions available on Commerce-controlled items may enable illegal procurement and diversion of reclassified weapons, a risk that concerned many current and former enforcement officials interviewed for a recent Institute for Science and International Security report. Different or missing brokering registration and agreement approval requirements, as well as confusion over regulations, may also make it harder to identify and prosecute arms smugglers and illegal exporters. The State Department also has the proper mandate to take into account the impact of firearms transfers on terrorist activity, human rights norms and other considerations beyond commercial interests. Lessening State's role would pose significant risks to longstanding U.S. efforts to advance the support of the rule of law and human rights around the globe.

Next Steps

Given the uncertainty around the impacts of any proposed reclassifications, Congress would be wise to ask the GAO to conduct an assessment of the export control reform initiative to this point and independently identify any risks of transferring items on categories I-III to Commerce control. Leaders should ask the Trump administration to wait until those findings come in so that they can be taken into account in any plans to change current implementation.

Concerned members of Congress should also make their opposition known. If rules are indeed notified this month, they should analyze those closely and weigh in during the comment period. They must also rise above the loud voices that will seek to tie this issue to the Second Amendment. These rules are strictly about the international transfer of firearms, not in any way related to domestic possession.

While the administration can proceed with changes to the USML and CCL without Congressional approval, legislators can also pass laws. If needed, for example, Congress could mandate that their oversight role be retained on any weapons moved from the USML to CCL.

In the end, these are the weapons most responsible for so much suffering in the world and ones that could easily be found aimed at U.S. forces. It is irresponsible to lessen control of their export for simple commercial gain or because they are not America’s most sophisticated weapons. As Senators Cardin, Feinstein and Leahy reminded, “combat firearms and ammunition are uniquely lethal; they are easily spread and easily modified, and are the primary means of injury, death, and destruction in civil and military conflicts throughout the world. As such, they should be subject to more – not less – rigorous export control and oversight.”—JEFF ABRAMSON, nonresident senior fellow

U.S. officials last month emphasized the need for an arms trade treaty (ATT) while acknowledging its possible limitations and the obstacles to agreement on the pact, which is to be negotiated July 2-27 at the United Nations.

U.S. officials last month emphasized the need for an arms trade treaty (ATT) while acknowledging its possible limitations and the obstacles to agreement on the pact, which is to be negotiated July 2-27 at the United Nations.

The officials made their comments April 16 at a forum convened by the Henry L. Stimson Center in Washington. Nongovernmental organizations (NGOs) at the forum challenged the U.S. approach to the treaty, saying it did not go far enough in holding governments accountable for sales of arms and ammunition to countries with poor human rights records. The treaty would regulate international trade in conventional weapons.

In his keynote address to the Stimson Center gathering, Assistant Secretary of State for International Security and Nonproliferation Thomas Countryman said that “providing defense equipment to reliable partners in a responsible manner actually enhances security, stability, and promotion of the rule of law.”

He argued that a successful treaty would compel countries without adequate export controls to improve their national systems, but he cautioned that even a robust treaty would “not fundamentally change the nature of international politics nor can it by itself bring an end to the festering international and civil conflicts around the world.”

Countryman also spoke about U.S. policy on some of the more contentious issues surrounding an ATT, including whether ammunition should be included within its scope. Although the United States already licenses its own import and export of ammunition, he said that the Obama administration had resisted incorporating ammunition because the logistics of monitoring end use through the ATT would be “hugely impractical.”

“We have asked our international partners, who proposed this inclusion, to lay out some specific means where such a fungible and consumable commodity could effectively and practically be accounted for,” said Countryman, adding that he was skeptical that a workable proposal for addressing ammunition through an ATT was at hand. Countryman gave a similar response in his interview with Arms Control Today (see page 21).

Echoing criticisms from countries and other NGOs in favor of regulating ammunition, Paul O’Brien, vice president for policy and campaigns at Oxfam America, said that failure to address ammunition adequately would mean the treaty would bring little improvement to countries “already awash in firearms.” More than 100 countries, including Australia, Brazil, Mexico, Turkey, and the United Kingdom, have expressed strong support for the inclusion of ammunition within the treaty’s scope, according to a tabulation by the NGOs Control Arms Alliance and Reaching Critical Will.

Speaking on the same panel as O’Brien, Ann Ganzer, director of the Office of Conventional Arms Threat Reduction at the Department of State, said the United States supports the inclusion of small arms and light weapons in the treaty. Only four countries—China, Egypt, Ethiopia, and Iran—have publicly objected to this proposal, according to the NGO tabulation.

On the issue of ammunition, Ganzer added, “We do not have a problem with the regulation of ammunition. The United States licenses the manufacturing, import, and export of ammunition. The issue comes in with some of the other requirements of the treaty—reporting requirements.” According to experts familiar with the ATT negotiations, her comments suggest a possible shift in the U.S. position that could help open the way to agreement on the issue.

Countryman and Ganzer emphasized that, in order to gain U.S. approval, an ATT should only spell out principles for implementing effective arms export control but not limit a country’s ultimate authority to proceed with a sale, even if the recipient had a poor human rights record.

In explaining this position, Ganzer said that “the question of who is violating human rights…is not always as straightforward as it seems.” She also said that a country’s own citizens, as well as the international community, could still challenge a government’s sales on humanitarian grounds.

O’Brien countered that some proposals for the treaty language, which ask only that countries “take into account” an arms recipient’s human rights record when evaluating a possible sale, were too weak and “like asking Coca-Cola to take into account…that people have a sweet tooth.” By setting low standards for countries, O’Brien argued, the treaty makes it more difficult to hold governments accountable in a meaningful way.

When questioned on this point, Ganzer twice conceded that the “language in the [ATT] chairman’s paper is rather weak” and said U.S. negotiators have talked to other countries about ways to strengthen it. ATT Committee Chairman Roberto García Moritán of Argentina has produced a draft text during preparatory committee meetings, but delegates have not yet agreed on an official draft treaty text.

Ganzer said that although there was concern over “the treaty not being strong enough to make a difference,” the United States would not sign on to an agreement “that was not strong in terms of demanding export controls and national decisions made at a sufficiently senior level that the government has to take responsibility for those arms transfers.”

Ganzer admitted that if passed, the ATT was unlikely to alter sales to countries such as Syria, which has violently suppressed popular uprisings for more than a year, if an exporter chose to go ahead, as Russia has done in recent months.

“All I can tell you about that specific situation is that Russia has a very good export control system…. Were an arms trade treaty in place, I don’t know that it would change Russia’s sovereign decision; it is their decision to make,” she said.

Although many in the international community maintain that the ATT might not go far enough to protect human rights, Countryman said countries that are already experiencing difficulty purchasing weapons because of poor human rights records “will not be eager” to see a treaty that codifies human rights concerns as criteria for sales.

Countryman also said that although he did not believe the ATT would put an onerous financial burden on countries, he did expect the subject of implementation costs to come up in future discussions.

To address these and other concerns, the United States has been contacting key countries in preparation for the July negotiations, Ganzer said. She said the United States was making a particular effort to talk with the 20 countries that abstained from voting on UN General Assembly Resolution 64/48, the mandate under which the July conference will be convened.

In “How to Reach Consensus on an Arms Trade Treaty” (January/February 2012), Andrew Wood rightly states that industry would have a major role in implementing an eventual arms trade treaty (ATT) and highlights the value of its engagement as the international community meets to finalize treaty text this summer. He also forthrightly identifies a number of sticking points in the negotiations and properly seeks to dismiss the distraction caused by members of the firearms industry and sport shooter community.

In “How to Reach Consensus on an Arms Trade Treaty” (January/February 2012), Andrew Wood rightly states that industry would have a major role in implementing an eventual arms trade treaty (ATT) and highlights the value of its engagement as the international community meets to finalize treaty text this summer. He also forthrightly identifies a number of sticking points in the negotiations and properly seeks to dismiss the distraction caused by members of the firearms industry and sport shooter community.

Unfortunately, he repeats a narrative being spun by the United States and some other states that the best course of action is to seek a “lite” treaty that is short and simple. Although there are certainly levels of detail that may go too far, a too weakly defined treaty runs the real risk of creating too much freedom for countries to omit items that they do not want to see included or providing a stamp of approval for arms transfers that are irresponsible.

Although Wood notes that the moral argument for an ATT is clear, he characterizes the aim of an ATT as “to regulate global trade…more effectively, not to reduce or to limit the scope for legal trade.” In doing so, he dismisses too quickly the humanitarian and moral reasons that motivate most countries’ and civil society members’ engagement in the ATT endeavor. For us, controlling the arms trade is about saving and protecting lives. Although business and arms trade can be compatible, they are at odds when arms trade results in human rights abuses, violations of international humanitarian law, and actions that undermine development. The treaty must establish the supremacy of these human values in determining what is responsible trade, not just take them into account.

Wood stresses the importance of agreement among the UN Security Council’s five permanent members (P5), suggesting in particular that China and Russia may be aiming for a politically binding agreement rather than a legally binding treaty. The wrangling within the council over Syria, along with Russia’s continued arming of the Assad regime, certainly has demonstrated that P5 agreement always will be a challenge. But the Security Council’s failure also points to the reason that a treaty is so desperately needed—to resolve more universally the question of what constitutes responsible arms trade. The best course of action in thinking about the P5 is not one of weakening the treaty, but instead making clear to the five countries that the true mainstream sentiment is to reach a treaty of the highest possible standard.

In the run-up to the July negotiations, an important role for industry is to make the case that robust regulation really is possible and beneficial. Indeed, many Western companies already are operating in highly regulated environments, and Wood notes that “ethical and reputational factors in public and private investment are playing an increasing part in where the smart money flows.” Last year, a group of 21 investors, who collectively own or manage $1.2 trillion in assets, released a global investors statement on an ATT. They argue from a business perspective for an ATT that would meaningfully enshrine clear humanitarian and human rights criteria and regulate a broad scope of conventional arms, including ammunition. That message is one that industry should promote.

Jeff Abramson is director of the secretariat for Control Arms, a global civil society alliance campaigning for a strong arms trade treaty.

Since 2006, government representatives to the United Nations have been engaged in progressively wider and deeper discussions toward the negotiation of a treaty to regulate the trade in conventional arms. In 2009 the UN General Assembly decided to convene a conference that established a timetable for crafting an arms trade treaty (ATT), which is to be “a legally binding instrument on the highest-possible common international standards for the transfer of conventional arms.”

Since 2006, government representatives to the United Nations have been engaged in progressively wider and deeper discussions toward the negotiation of a treaty to regulate the trade in conventional arms. In 2009 the UN General Assembly decided to convene a conference that established a timetable for crafting an arms trade treaty (ATT), which is to be “a legally binding instrument on the highest-possible common international standards for the transfer of conventional arms.”

This decision established a series of four preparatory committee meetings, of which three have been held since 2010. Under the agreed program, there will be a short preparatory committee meeting in February, primarily on procedural issues, and the negotiations will start in July.

This might appear to be a protracted process, but by the standards of multilateral negotiations, the pace has been remarkable. Nevertheless, with only 22 days of talks left, it is time to focus on issues that will increase the prospects for success and determine what a treaty might look like. A key issue in this regard is why the defense industry should be involved in the debate, a point that this article will address in some detail.

The aim of an ATT is to regulate global trade in conventional arms more effectively, not to reduce or to limit the scope for legal trade. The envisioned treaty would represent a new kind of instrument that would not fall neatly into the category of disarmament or arms control.

There is enormous support for an ATT among UN member states.[2] For example, 151 states voted in favor of the last UN resolution on an ATT in 2009. However, the five years of talks have shown that there are probably more than 100 different views of what the treaty should look like. As always in these negotiations, the devil is in the detail. Therefore, a key question for the negotiators is whether it is possible to avoid detail in the text of the treaty.

Prospects for Success

The chair of the process, Ambassador Roberto García Moritán of Argentina, has done a remarkable job in marshaling the discussions, gathering a collection of disparate views into a chairman’s draft that has been circulated to governments and observers in the preparatory committee meetings. He has said clearly and repeatedly that this is not a draft treaty text; indeed, it carries no formal status. Yet, that does not stop many people from thinking or claiming otherwise. That view needs to be dispelled. In the UN, such misconceptions often lead to considerable time being lost down rabbit holes.

Distilling from the draft text the elements that will constitute a strong, effective, and implementable treaty remains a significant challenge. Arguably, 70 to 80 percent of the issues are close to agreement; it is the remaining 20 to 30 percent that will lead to some late nights at the UN. Before addressing these issues, however, the delegates most likely will have to overcome some procedural obstacles.

During preparation of the 2009 resolution, a tremendous amount of heat, but little light, was generated in a debate over whether the negotiating conference should be undertaken on the basis of consensus. Following U.S. votes against ATT resolutions in 2006 and 2008, the need for consensus was a critical element in obtaining a new U.S. position of support.[3] Some long-standing advocates and observers felt this price was too high, arguing that it may give states the ability to stall negotiations and dilute the final treaty.[4] Nevertheless, having the United States, the largest exporter of conventional arms, positively engaged in the process was and remains vital to its success.

Clearly, the change of administration in the United States and the resulting desire to engage in a multilateral process alongside some of its closest allies and friends were major factors in the change of U.S. position. Yet, other factors also were important. First, a treaty in some form is likely to be concluded, if not in 2012, very soon after. Quite rightly, Washington wants to make sure the treaty does not undermine U.S. objectives: preventing arms from falling into the hands of those that would threaten its homeland, its military overseas, or its friends and allies. A weak treaty also could provide a fig leaf for governments less willing to address the need for responsible controls on arms exports, undermining years of efforts to deal with states that proliferate or divert arms.

Second, the United States needs to be at the table to protect its interests. Actively participating in the negotiation gives it the chance to promote the export control agenda that it has pursued since the early days of the Cold War, an agenda that focuses on promoting national responsibility and accountability for transfers. Moreover, once a treaty is completed, a state that is not a signatory will not have a place in meetings of states-parties that would define future implementation and adaptation of a treaty.

Other significant players such as China and Russia, which both had abstained on the 2009 resolution, now have taken a role alongside the United States, albeit from slightly different positions. Both had remained skeptical of the need for a treaty. One of the most significant breakthroughs came last July during the third preparatory committee meeting. The five permanent members of the UN Security Council—China, France, Russia, the United Kingdom, and the United States, known as the P5—made a joint statement[5] supporting the efforts aimed at establishing an “international instrument.” This choice of words was notable because an international instrument could be a document that is politically but not legally binding and therefore would be viewed by many as much weaker than a treaty. Perhaps this reflected remaining reservations on the part of China and Russia about the scope and purpose of any treaty as it did not entirely reflect the mainstream view in support of a comprehensive, legally binding treaty establishing the highest-possible common international standards for the transfer of conventional arms.

A consensus rule certainly helped to bring three of the largest arms traders—China, Russia, and the United States—to the table. Crucially, however, with Washington now at the table, actively pursuing a strong and robust treaty, it was perhaps unrealistic for Beijing and Moscow to continue to abstain.

It remains unclear whether the shift by China and Russia makes consensus more likely. Achieving consensus largely depends on a text the P5 can accept, as those five states represent the preponderance of the export and import trade in conventional arms. Nevertheless, they are not the only players in a process that must be open and transparent and take full account of the views of all member states. To have a significant treaty supported by a broad range of states will require compromise from all. There remains a critical need for a dialogue among proponents, the P5, and those less convinced of the need or feasibility of a treaty.

Industry Involvement Needed

As momentum builds in the diplomatic process toward the July conference, discussion now also must focus on practical aspects of the treaty’s scope and implementation. Creating idealistic or compromise language that fails to take account of the practical aspects of implementation will critically undermine the treaty’s longer-term success. Industry has an important role to play.

Governments and nongovernmental organizations (NGOs) sometimes do not fully understand the enormous scale and complexity of the global supply chain in defense goods and technology. From its experience in this area, the defense industry understands the dynamics and the practicalities, including the negative effects that could result from imprudent language that is impractical to implement. Along with governments, industry will be one of the major stakeholders in the treaty, the ones who will be most directly affected by its implementation.

The few industry representatives that have attended recent preparatory committee meetings have noted with some concern an absence of such expertise. The fact that the ATT process was established and subsequently developed within the UN General Assembly’s First Committee, the body that deals with disarmament and international security, has meant that an ATT is viewed through a disarmament lens and is being negotiated by disarmament diplomats. Although there was no other UN forum in which it could reasonably be discussed, the disarmament and arms control label is distinctly unhelpful.

It is both natural and essential that industry in all regions and of all views be involved. A number of the delegations and García Moritán are now calling for the close involvement of industry.

Perhaps because of a lack of clarity about the nature of an ATT, with the exception of some European companies, the larger aerospace and defense industry has been unaware of a process that could have a significant impact on its business. It also is possible that many merely thought the UN process would not progress as fast as it has. Some in the U.S. industry believed there was little chance in the early stages of the U.S. government signing a treaty, even if one emerged. British industry’s discussions with its overseas partners underscored this point, but many U.S. companies were simply unaware of an ATT as an issue.

This is not entirely industry’s own fault. Without government outreach to industry, the labyrinthine processes of the UN, involving resolutions, groups of governmental experts, open-ended working groups, and preparatory committees, is remarkably opaque to outsiders, and the potential implications often remain remote.

One exception to this lack of awareness was in the firearms industry. That sector has been sensitized to UN processes, often with a real fear that these would threaten or undermine its business. Such fears arose most notably in connection with the UN “Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All Its Aspects” in 2001.[6] Alongside the firearms industry stood the sports shooting community, which also perceived real threats to its interests. At the time and on that specific initiative, some of those concerns probably were reasonable.

In the context of an ATT, these concerns swept in at a very early stage. Clearly, small arms and light weapons were on the agenda as they form part of a broad menu of conventional arms that would be discussed. Many states, particularly in Africa, attach the highest importance to issues of small arms and light weapons. This is entirely understandable as they are most affected by the proliferation of such weapons. They viewed an ATT as a means to address what they saw as failures by or omissions from the UN program of action process. Issues relating to small arms and light weapons became a dominant part of the early ATT discussions. As a result, the legacy concerns of the firearms industry and sports shooting community were resurrected. Regrettably, this has been erroneously skewed toward an unhelpful exchange between proponents of an ATT—governments and NGOs—on one side and those representing the sports shooting and civilian gun ownership community on the other. Calls from some states and a majority of NGOs to have the broadest possible definition of small arms and light weapons, including civilian firearms, have merely fueled that debate. This perpetuates the erroneous perception that an ATT is focused primarily on these weapons. More narrowly but no less importantly, the sports shooting community fears that issues of transfers within national borders and private ownership will be included in an ATT’s scope. Both of these fears should have been allayed. As the report of the 2008 UN group of governmental experts on an ATT concluded,

It was also mentioned that, were an arms trade treaty to be considered feasible, it would need to reflect respect for the sovereignty of every State, without interfering in the internal affairs of States or their constitutional provisions, and respect for their territorial integrity. Exclusively internal transfers or national ownership provisions, including national constitutional protections on private ownership within that State’s territory, should not fall under an arms trade treaty.[7]

That redline remains for many states, including many proponents such as the United Kingdom, and certainly for the United States. Because decisions must be made by consensus, any perceived encroachments on constitutional rights can easily be prevented.

Furthermore, it is important to note the global object and purpose of a future ATT. Issues of civilian ownership and sports shooting, important though they are in their context, simply have no place in an ATT. It would be a shame if this debate, over an issue explicitly ruled out at the earliest stage and reaffirmed in the 2009 resolution establishing the negotiating conference,[8] were able to continue sucking oxygen from the broader debate over the trade in conventional arms. One effect of the debate over small arms and light weapons is that it prevents the voice of the larger aerospace and defense industry community from being heard.

Covered Categories

The seven major categories of conventional arms likely to be included, taken broadly from the UN Register of Conventional Arms, are tanks, military vehicles, artillery systems, military aircraft, military helicopters, naval vessels, and missiles and missile systems. In addition to these, small arms and light weapons are being pursued as an additional category—an ordering that many in the earliest days called the package of “7+1.” During the First Committee debates in October 2009, one industry group noted the discussions on scope had been turned upside down and were more about small arms and light weapons than the seven major categories of conventional weapons and thus more like “1+7.”[9]

Discussion appears to be moving toward a broad interpretation of the seven categories plus small arms and light weapons. This broad interpretation is important, as is avoiding any attempt to define any of the categories. Such efforts have proven difficult in the context of the UN Register, and there is no reason to expect them to be different in an ATT. The direction now appears to be toward allowing states to define the coverage precisely in their own national legislation. This is the right way to go, in part because it would avoid just the kind of detail that would stall negotiations.

Including ammunition is a problem and will likely remain so for many states if there were to be any suggestion of reporting on ammunition transfers. Many states consider such information to be sensitive and, for large exporters, extremely burdensome to collect.

Another contentious issue is the inclusion of many thousands of dual-use items. A number of governments have recognized the practical problems with defining and including these items, and it seems doubtful that they will be part of the eventual scope. The inclusion of transfers of technology also raises practical problems. Many states define this term quite broadly;[10] the danger is that many millions of technology transfers across the defense industry, for example relating to minor design issues or product support, could be brought within the scope of a treaty. These would be irrelevant to its purposes and would prove bureaucratically difficult to license and manage.

One can envisage including technology in the scope of licensed production arrangements, where it could be part of the transaction, combining with hardware, machine tools, and other elements to form a defined package, rather than attempting to define it generally. In this way, there would be no ability to evade treaty controls by transferring complete production arrangements, including the associated technology, to a non-ATT territory. Industry favors closing such loopholes.

Why Industry Should Care

Since 2006, British and other European industry representatives have worked increasingly closely with NGOs and governments to drive the process toward an effective and implementable treaty.

The defense industry places the highest priority on compliance with export controls wherever it operates. The majority of the industry already is heavily regulated, but that regulation is by no means universal in scope or effect. This uneven landscape provides one of the key arguments deployed in support of an ATT: the need to plug gaps. For industry, the unevenness also presents enormous challenges in achieving concurrent compliance in all the jurisdictions in which it operates. Thus, an initiative that genuinely seeks to establish a global benchmark is to be welcomed and supported.

The moral argument for an ATT, which encompasses human security and social and economic development, is overwhelming. In no way is this incompatible with good business practice. Corporate social responsibility is a fundamental part of effective business strategy. In the majority of companies, there is a strong belief that reputation matters and that conducting business in an ethical and responsible way brings competitive advantage.

The current economic climate brings new drivers and challenges that are relevant to the ATT debate. At no time in recent memory has the concept of a “level playing field” been as important as it is today. Pressure on industry and governments has grown. Driven at least in part by smaller slices of the cake being available to high-value manufacturers, this pressure presents the increased risk of suppliers in some countries entering or revisiting markets that would have been considered off-limits under other circumstances. This outcome would be highly undesirable, certainly from a security and human rights perspective.

Many governments have expressed a desire to rebalance their economies, moving toward high-value manufacturing and new wealth-creating industries. They are looking at more-active approaches to strategic industrial policy, despite pressure on public resources. Some will be looking to capture higher shares of mobile investment. At the same time, ethical and reputational factors in public and private investment are playing an increasing part in where the smart money flows.

Much of the research, technology, and skill base in high-value industries is tied to the defense industry. That industry can be a catalyst for high-value manufacturing growth in developed and developing economies.

Openness in the world trade system is essential for successful growth. Such trade must be carried out responsibly and securely. A treaty that clearly establishes the highest common standards, coupled with transparency of implementation, can go a long way toward achieving this goal.

Industry would welcome the opportunity to conclude supply contracts with many countries that have relatively low costs and a skilled workforce. At the moment, industry’s ability to do that is limited by licensing restrictions, sometimes involving a number of governments. Industry would welcome an ATT that overcame this problem.

Possible Approaches

Although not new, two approaches have gained increasing currency. Both are welcome.

The first is an ATT “lite” that is relatively comprehensive and specific on the “what” but short on the “how.” This means that the object and purpose of the treaty must be clear for any state that signs and ratifies it but that the treaty must allow states to make national decisions on issues such as how to establish their export control systems and licensing policies. It also suggests that definitions of terms such as “brokering,” “transit,” “transshipment,” “retransfer,” “loans,” “gifts,” and “donations” need not be provided in the treaty text. Each state would be expected to implement the treaty in good faith through appropriate legislation.

Second, there are increasing calls for a treaty to be short, simple, and easy to implement, an approach reflected in the P5 statement but also increasingly echoed by others in the preparatory committee meetings. This suggests that many of the “wish list” items, particularly extensive documentation and record keeping at every stage of a transaction, will be ruled out, as they should be, as overly burdensome and difficult to implement.

Both approaches recognize some practical constraints: the limited time available to negotiate a text, the differing national mechanisms for implementing export controls, the differing security interests of states, and the differing capacities for implementation. No single issue will be the determining factor, but in combination, they represent powerful drivers toward a short but effective treaty text.

Five goals and objectives in the current draft text, listed below, appear to have broad support and should rightly provide the compass for negotiations and the creation of a core treaty text.

Promote the goals and objectives of the UN Charter. The 2008 group of governmental experts, which worked by consensus, said that the principles of the UN Charter should be “at the centre” of efforts to address the international arms trade.[11] Therefore, in practice, a treaty will have to respect the sovereignty of every member state. This points to national decision-making and precludes a supranational body that would be able to question the national decisions of states regarding their arms transfers.

Establish the highest-possible common international standards for the import, export, and transfer of conventional arms. The highest-possible common standards should be exactly that—not the lowest common denominator. Furthermore, they should be a floor, not a ceiling. It is fundamentally important that any treaty not be seen as weakening existing controls. It should raise the bar for some, and states should be free to go beyond if they deem necessary.

Prevent, combat, and eradicate the illicit transfer, production, and brokering of conventional arms and their diversion into the illicit market, including for use in transnational organized crime and terrorism. This issue has caused some polarization of views between states. Some states want to limit the scope of a treaty to illicit trade. This misses one essential point held as important by many other states: raising the bar on national export controls makes it more difficult for the illicit trade to operate, particularly if one of the criteria is risk of diversion. Part of the deal that must surely emerge is a recognition that strong and effective controls on all transfers are the only way to prevent, combat, and eradicate illicit trade.

Contribute to international and regional peace, security, and stability by preventing international transfers of conventional arms that contribute to or facilitate human suffering or violations of international law and obligations.

Member states have questioned whether the criteria for this goal[12] are objective. Where a UN Security Council resolution under Chapter VII of the UN Charter is relevant, by banning arms transfers, there clearly is no question regarding the legal obligation of states to comply. Such resolutions under Chapter VII refer to threats to international peace and security and are legally binding on all states. Any criteria referring to such a resolution would clearly be objective and should say that states “shall” not authorize a transfer of arms in situations that meet one or more of the criteria. Similarly compelling language should also apply to other international, regional, subregional, and national measures under which a state is bound or has chosen to be bound, where these relate to sanctions or embargoes on arms transfers. Whether the treaty will make any reference to regional embargoes is doubtful. Such language would certainly make holding together P5 support very difficult.

The objectiveness of other criteria will cause significant debate, especially where judgments over human rights law or international humanitarian law are required. Leaving aside the many debates over the applicability and interpretation of these important bodies of law, significant states will believe that these judgments will be inherently subjective and will therefore insist on the phrase “should not” or “take into account,” rather than the more restrictive “shall not” when referring to the decision to transfer arms.

Promote transparency and accountability in the import, export, and transfers of conventional arms. There is a laudable and principled call for maximum transparency to support a treaty, but this issue needs to be sliced a number of ways. Transparency of implementation has two parts. National reporting on the implementing arrangements will naturally require a comprehensive, one-time report to the UN on the legislative or administrative measures taken to ratify and implement the treaty in good faith. Subsequent reporting would merely provide updates materially affecting implementation. Through this kind of reporting, in combination with annual meetings of states-parties and regular review conferences, differences in national implementation can be discussed and improvements made. This will create a norm in the area of conventional arms transfers that has never existed, which is a prize worth pursuing in the longer term and not one that can be secured immediately.

Reporting on transfers will require more comprehensive annual reporting and would reflect the ultimate scope of the treaty. In order to avoid “reporting fatigue” and to recognize capacity problems in some states, the UN Register would be the logical vehicle because many states already report to it. If the scope of the treaty goes beyond the current seven categories, as it should, then treaty signatories would simply report to the register through an expanded reporting format. This is surprisingly simple to do in practice. The register could continue as a voluntary transparency and confidence-building instrument for any UN member states that are not parties to the treaty.

Cooperation and assistance will be an important element in the body of the treaty and will most likely generate a reporting requirement. States lacking a national export control system may need assistance in creating one to meet treaty requirements. States willing and able to provide assistance, for example on the establishment of export control licensing and enforcement arrangements, would be able to report this. Reporting would possibly identify both offers of assistance and those requiring it.

Perhaps in recognition of the drive toward a lite treaty, there is little appetite for any large secretariat to be established. A much smaller implementation support unit, like the one for the Biological Weapons Convention, acting as a repository and collating the information for the parties, would be sufficient to handle the reports. One possible additional role for the unit would be to act as a clearinghouse for cooperation and assistance, matching needs and resources.

Conclusion

An ATT would require states to consider their existing obligations under international humanitarian law and international human rights law, but many states appear to have differing views on how those obligations should be interpreted and brought to bear on arms export decisions. The drafting and implementation of such parameters must account for this. Simplicity is the best solution.

There is a balance to be struck between loading the treaty with complex text in an attempt to address every angle and keeping it simple for states to implement in good faith through their national implementing legislation. It should be possible to identify a simple menu of proven options for scope and implementation. Bringing these elements together into a coherent package, in a community of vastly different interests, will be the significant challenge over the remaining 22 days of discussion.

The challenges mentioned above certainly are not a reason to oppose an ATT. They acknowledge some practical and political problems that have defied attempts at consensus since the League of Nations. Now, in a world increasingly interdependent on economic and security issues, these global problems demand global solutions.

Andrew Wood is director of strategic export control for Rolls-Royce plc. He is responsible for the company’s global compliance program and is the British industry representative on the United Kingdom’s arms trade treaty negotiating team. Before joining Rolls-Royce in 2009, he served for 10 years in the Ministry of Defence, where he worked on arms control, nonproliferation, and export control policy. This article reflects a range of perspectives from British industry rather than a single corporate view.

6. United Nations, “Report of the United Nations Conference on the Illicit Trade in Small Arms and Light Weapons in All Its Aspects,” A/CONF.192/15, 2001.

7. UN General Assembly, “Towards an Arms Trade Treaty: Establishing Common International Standards for the Import, Export and Transfer of Conventional Arms,” A/63/334, August 26, 2008.

8. The June 2009 resolution “[a]cknowledg[es] also the right of States to regulate internal transfers of arms and national ownership, including through national constitutional protections on private ownership, exclusively within their territory.”

10. “Best Practices for Implementing Intangible Transfer of Technology Controls,” 2006, www.wassenaar.org/publicdocuments/2006/docs/ITT_Best_Practices_for_public_statement_2006.pdf. The Wassenaar Arrangement defines “Technology” as “[s]pecific information necessary for the ‘development,’ ‘production,’ or ‘use’ of a product. The information takes the form of technical data or technical assistance.”

Contribute to international and regional peace, security and stability by preventing international transfers of conventional arms that contribute to or facilitate: human suffering, serious violations of international human rights law and international humanitarian law, violations of United Nations Security Council sanctions and arms embargoes and other international obligations, armed conflict, the displacement of people, transnational organized crime, terrorist acts and thereby undermining peace, reconciliation, safety, security, stability and sustainable social and economic development.

In the high-profile criminal case against a man who has become a symbol of the illicit arms trade, a federal jury in New York City on Nov. 3 found arms dealer Viktor Bout guilty on all four charges brought against him.

In the high-profile criminal case against a man who has become a symbol of the illicit arms trade, a federal jury in New York City on Nov. 3 found arms dealer Viktor Bout guilty on all four charges brought against him.

Following a three-week trial and less than two days of deliberation, the jury found Bout guilty of conspiring to acquire and use anti-aircraft missiles, kill U.S. nationals, kill U.S. officials, and provide material support to a designated foreign terrorist organization, namely the Revolutionary Armed Forces of Colombia (FARC). Judge Shira A. Scheindlin, who presided over the case, has scheduled a sentencing hearing for Feb. 8.

Bout, a Russian national, was arrested in March 2008 in Bangkok by Thai authorities working with U.S. law enforcement officials, following a series of meetings with undercover agents he believed to be arms buyers for FARC. (See ACT, April 2008.)

Russian government officials sharply criticized the verdict. Russian Foreign Ministry spokesman Alexander Lukashevich alleged in a Nov. 3 statement that the U.S. government had created a biased atmosphere around the trial, “preventing objective consideration of facts.” Russian Foreign Minister Sergey Lavrov said Oct. 21 in a radio interview reported on by RIA Novosti that Bout was “provoked” to make statements that were used as evidence of his crimes in a meeting with U.S. officials directly after his arrest. In an Aug. 25 pretrial ruling, Scheindlin decided that prosecutors would be barred from using those statements in the trial. Scheindlin found that because Bout was arrested at gunpoint, strip-searched, denied access to consular and legal assistance, and interviewed immediately by U.S. officials in spite of his request not to be, those statements were not “made voluntarily” as required by law.

However, Scheindlin ruled against Bout’s lawyers when they filed a motion to dismiss the charges on the grounds that they were politically motivated or vindictive. Scheindlin said the lawyers had not shown that Bout had been pursued by law enforcement officials solely because of U.S. vindictiveness. Bout’s lawyers had alleged in their motion that the U.S. government was embarrassed by Bout’s ownership of cargo aircraft used to transport goods to the U.S. military in Iraq in 2003.

U.S. Department of State spokeswoman Victoria Nuland said during a Nov. 4 press briefing that the United States was “obviously gratified” by the verdict, but a press officer declined to elaborate when contacted for further comment. Attorney General Eric Holder stated in a Nov. 2 press release that Bout’s activities had been a “source of concern around the globe” for decades.

Rep. Ed Royce (R-Calif.), chairman of the House Foreign Affairs subcommittee on terrorism, nonproliferation, and trade, also welcomed the verdict in a Nov. 2 press release. Royce said Bout had done “irreparable damage across the world” and praised the Thai government and U.S. officials for their conduct leading to the conviction. However, in a Nov. 16 e-mail to Arms Control Today, Royce said that Bout was only “the tip of the iceberg.”

Undercover Agents Testify

To convince the jury of Bout’s guilt, U.S. prosecutors relied on the testimony of two undercover Drug Enforcement Administration (DEA) agents, recordings of meetings and conversations between Bout and those agents, and the testimony of Andrew Smulian, a former accomplice of Bout.

At the March 6, 2008, meeting in Bangkok at which Bout was arrested, he discussed the sale of 20,000 to 30,000 Kalashnikov assault rifles from Bulgaria and “Yugoslavia” with the DEA agents, who were posing as arms purchasers for FARC.

Ivan Zverzhanovski of the South Eastern and Eastern European Clearinghouse for the Control of Small Arms and Light Weapons told Arms Control Today in a Nov. 18 e-mail that transfers of weapons from former Yugoslav countries on the scale proposed by Bout would have to directly involve security ministry stockpiles. He said that this made it “much more unlikely” that Bout could have carried out the deals.

In the 2008 meeting, Bout also discussed his ability to provide Dragunov sniper rifles, C-4 explosives, fragmentation grenades, night vision equipment, and armed ultralight aircraft as well as the possibility of providing landmines to FARC.

According to a transcript of the meeting presented as testimony by the prosecution, Bout said his “friends” stopped producing landmines after the 1990s and that the mines are “not being sold right now.” Bout also said he would provide training for the use of some of the weapons and spare parts for their maintenance. He explained to the DEA agents that he could potentially use arms export licenses for unconcluded, legal deals to facilitate the purchase of weapons from eastern European sources.

Of particular importance to U.S. prosecutors was Bout’s tentative agreement to facilitate the sale of Igla SA-18 surface-to-air missiles to FARC. Ricardo Jardenero, a DEA informant who posed as a FARC commander, told Bout that the missiles were to be used against Apache and Black Hawk helicopters operated by U.S. personnel in Colombia.

According to media accounts of the trial, Jardenero and Carlos Sagastume, another DEA informant who participated in meetings with Bout and testified at the trial, were involved in the illegal drug trade before becoming paid informants for the U.S. government.

Bout’s Defense

Albert Dayan, one of Bout’s lawyers, asked Sagastume during the trial whether the payments had influenced his testimony, according to media reports. Sagastume denied that they had.

Bout’s defense centered more on the claim that the arms dealer’s main intent was to sell two cargo planes to FARC and that the arms components of the negotiations were secondary. (See ACT, November 2011.)

In a Nov. 3 interview with The New York Times after the conclusion of the trial, jury forewoman Heather Hobson said Bout’s defense was critically undermined by the recording of a phone conversation with Smulian, submitted as testimony. During the call, according to the interview, Bout appeared not to have developed detailed planning for the plane sale. Hobson said this contradicted Bout’s defense because it showed he had not given extensive thought to what he had claimed was the priority transaction at the meeting.

Bout’s lawyers asked Scheindlin in a Nov. 11 letter for an annulment of the verdict or an evidentiary hearing, based on the possibility that some jurors had been tainted by exposure to prejudicial information about Bout before the trial, according to Russian media reports. A court spokeswoman confirmed Scheindlin had received the letter.

Hobson said in the Times interview that she had seen “Lord of War,” a 2005 movie in part inspired by Bout’s activities, but she said that, until the trial, she was not aware of the connection between Bout and the film.

Larger Problem

Royce, the House subcommittee chairman, welcomed the conviction and said in the Nov. 16 e-mail that Bout’s “Merchant of Death” title was “well-earned.” However, many of his clients and successors remain to be brought to justice, the chairman added. The arms traffickers that will step into Bout’s shoes likely will maintain a more low-key public persona, potentially complicating efforts to track them down, Royce said.

In testimony to Royce’s subcommittee Oct. 12, Douglas Farah, the author of a 2007 book on Bout, identified Bout and his peers as a small group of “super fixers,” experts in providing critical illicit services to criminals, terrorists, and states. Farah said they derive their utility from their knowledge of how to exploit the “seams in the international legal and economic structure” and are “gatekeepers” for illegal goods, including small arms, weapons of mass destruction parts or materials, drugs, and trafficked humans.

In the e-mail Royce said that super fixers’ ability to make use of “criminal states” that “just plain need responsible governments” was the key to their success. Royce cited Bout’s registration of aircraft in Liberia and Equatorial Guinea and purchase of end-user certificates from Togo as examples of this ability. The legal protection that the Russian government gave Bout also was a main factor that allowed him to act with impunity, Royce said.

Sections:

Remarks by Jeff Abramson, Deputy Director, to the Consultative Committee of the Inter-American Convention Against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Material (CIFTA).

Body:

Improving CIFTA: A Nongovernmental Perspective

Remarks by Jeff Abramson, Deputy Director, Arms Control Association, to the Consultative Committee of the Inter-American Convention Against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Material (CIFTA)

I’m Jeff Abramson, Deputy Director of the Arms Control Association, a Washington DC-based nongovernmental organization that promotes effective arms control agreements to address the dangers posed by nuclear, chemical, biological and conventional weapons.

Last year, we added our name to a letter on behalf of organizations throughout the region that was delivered at the 11th regular meeting of this consultative committee. The number of organizations endorsing this year’s letter has nearly doubled, comprised of 14 groups and regional coalitions that represent citizens throughout the hemisphere (see attached). This is indicative of the wide-ranging support from civil society for CIFTA, and the importance we place on seeing that it be a strong and useful agreement in reducing the human and security costs of the illicit manufacturing and trafficking of firearms, ammunitions, explosives, and other related materials.

In my presentation, I’d like to do three things.

First, share a sample of the work that civil society is doing.

Second, reiterate a number of the main points you’ll find in our letter.

And third, address some of the core issues of this meeting: marking and tracing, as well as stockpile management.

Turning initially to some of the work civil society is doing, many of you are familiar with CLAVE (La Coalición Latinoamericana para la Prevención de la Violencia Armada) comprised of dozens of nongovernmental organizations who are working to prevent and reduce the impact of armed violence.

More recently, a new network has formed that is particularly focused on measuring the impact of violence on development and the millennium goals, and supporting the rights of and assistance to victims of armed violence, named SEHLAC Seguridad Humana en Latinoamerica y el Caribe.

Additionally, regional nongovernmental organizations are very active in supporting a robust Arms Trade Treaty and the global Control Arms coalition. In fact, organizations from Argentina, Brazil, Canada, Costa Rica and the United States currently serve on the coalition’s steering board.

Turning now to our letter… In it, we highlight that CIFTA faces two major challenges: one is the ratification by all members of the Organization of American States, and another is the need for real progress in its implementation. Concern about gun violence is at the heart of civil society interest in CIFTA and in the letter we underscore the need to recognize this issue. We also stress that effective control of firearms and ammunition is an international issue that therefore demands coordinated regional and international action.

Flowing from these observations, our recommendations include that all countries ratify the agreement, that initiatives be undertaken to examine how information is shared in order to improve the agreement’s implementation, that OAS members states make a strong positive statement in support of global Arms Trade Treaty negotiations, that states carry out initiatives to increase understanding and measure the problem of gun violence in the region, in particular focusing on victims and survivors of gun violence, and that mechanisms be created for official participation of civil society within the OAS and CIFTA committee.

Turning to the core topics of today’s meeting, let me first talk about marking and tracing.

On marking, states should continue to develop methods for the proper and reasonable marking of ammunition, so as to improve their control. In Brazil, use of laser technology to mark bullets, not with individual numbers but with lot numbers, provides proof of possibilities and cost effectiveness of new approaches.

Like CIFTA, we believe that a broader, global Arms Trade Treaty should take into account ammunition. Most OAS member states have stessed the necessity of including ammunition in any global norm-setting agreement because it is the supply of bullets that is essential to controlling armed violence, while the United States has argued against ammunition’s inclusion primarily citing logistical barriers. We encourage OAS members to use their experience to improve the debate on ammunition and work to overcome any disagreements so that the eventual ATT includes the bullets that are used for the majority of the violence perpetrated with conventional weapons.

Next, the registration of the various transactions related to weapons, particularly for transfers, is one of the pillars of traceability. However, even when records are available, they often contain errors. Among others, the Asociacion para Politicas Publicas (APP) in Argentina has found this to be a particular problem, in part through exploring customs data using the COMTRADE system. Therefore, we recommend that you conduct a joint exercise to compare transfer records within and across borders and determine the reliability of those records.

For tracing to work, cooperation and exchange of information within national agencies and between countries is essential. But civil society members see that capacity problems, jealousies and bureaucratic inertia conspire against the actual implementation of such cooperation. Therefore, we recommend an evaluation first to determine the real scope of cooperation and exchange of information, and second to identify obstacles and areas for improvement.

Of course, there are also successes and at times large volumes of weapons are seized as part of efforts to combat their illicit trade. Those instances should be better publicized as well as used to measure how well marking, tracing and broader communication efforts are working. Each such incident could provide a data point into how well information was shared, how quickly cooperation occurred, and how existing records aided in understanding and stopping illicit trade routes and practices.

Turning to stockpile management, states parties need to continue to work to improve mechanisms for accountability, which are essential for identifying and preventing the leakage of weapons into the illicit market.

For example, we encourage all countries to examine problems, accidents, and safety failures that occur with their military and police stockpiles, and private security firms, and to concentrate on improving accountability systems. Parliaments and civil society members will need to be involved in this effort because in democracies they provide the ultimate oversight to the internal operations of government bodies.

We also recommend that a mechanism be created for sharing information about stockpile losses and lapses. We recommend that this be done in a transparent manner, but at a minimum this sharing should occur at some level between governments. Lapses in stockpile security are not local problems, but regional ones, especially if large quantities of weapons and ammunition enter into illicit use.

At times, states have argued that such transparency would affect national security and secrecy concerns, but such arguments simply provide cover for government inefficiency or corruption. Reasonable systems can and should be put in place that do not compromise national security goals.

Speaking personally, as a citizen of and someone who works in the United States, I know that my country provides support to the CIFTA process, and has signed but has not ratified it. States parties should continue to make the case and press the United States to ratify the accord. I am also keenly aware that U.S. laws allow for loopholes that make it easy to obtain weapons near the Mexican border and illegally traffic them into that country, often in exchange for drugs. This only exacerbates the problems of illicit trafficking. While we are here today talking about CIFTA, we must not be afraid to point out where actions undermine the basic goals of the agreement.

Finally, as highlighted at the start of today’s meeting, CIFTA member states are engaged in a questionnaire about the implementation and effectiveness of the agreement. We encourage all countries to engage in this exercise. But that exercise should not result in a document that lists the number of countries that are filing reports and perhaps some details about what they are doing at a national level. We have seen the limits of those reports, for example, in official evaluations of the UN Program of Action and the UN Register of Conventional Arms. The real measures of effectiveness, however, have to be related back to the problems the agreements are meant to address. In CIFTA’s case, that’s the illicit trafficking of weapons and ammunition. We must ask the basic questions of how do we measure that problem? Is trafficking now more rampant, or is it declining? Is CIFTA truly working to address those issues?

We encourage all states to use the CIFTA agreement as a mechanism that holds every nation accountable and raises everyone’s efforts to fight the illicit trafficking of firearms, ammunition, explosives and other related material, because ultimately, doing so is essential to saving and improving the lives of all us living together, here, in the American states.

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